Delhi District Court
State vs Sadan on 30 August, 2024
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH EAST
KARKARDOOMA COURT: DELHI
IN RE:
SC No. 299/2017
CNR No. DLNE01-009526-2016
FIR No. 730/2017
PS New Usmanpur
U/s 392/397/411/34 IPC, 1860.
STATE VERSUS SADAN
Date of committal : 26.10.2017
Date of arguments : 23.08.2024
Date of judgment : 30.08.2024
Brief details of the case
A) Case FIR No. : 730/2017
B) Charges framed Under Section : 392/397/34 and 411
of IPC 1860.
C) Name of the complainant : Kamlesh Singh
S/o Madhav Singh
D) Name of the accused person : Sadan
S/o Israr
R/o Alvi Nagar,
DLF, Loni,
Ghaziabad, UP.
E) Plea of the accused person : Pleaded not guilty Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.08.30
14:36:44
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 1/ 36 +0530
F) Final order : Acquittal
G) Date of Order : 30.08.2024.
JUDGMENT
(Pronounced on the 30th day of August 2024)
1. The criminal law was set into motion on 29.07.2017, when the complainant Ramesh Singh reached PS New Usmanpur and gave his statement to ASI Mahender Pal. As per the said statement, on 26.07.2017, the complainant was returning back to his house situated at Kartar Nagar, Delhi after finishing his duty hours in Mukherjee Nagar.
2. The complainant Ramesh Singh further mentioned in his statement that he had come out of the metro at Kashmiri Gate Station and he took an auto rickshaw (TSR) from outside the said station, and he had informed the TSR driver that he wanted to get off at 4th Pusta, New Usmanpur. At that time of boarding in the said TSR, there was one driver and one other person sitting in the front seat with the driver. On the back seat of the said TSR, there was one person who was already sitting when the complainant boarded. Thereafter, one other person also boarded the said TSR and sat on the back seat with the complainant. At the time when the TSR started from Kashmiri Gate Metro Station, the complainant was sitting in the middle of the back seat and there were total of four other person including the driver in the said TSR. The complainant was seated in between other two Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:36:53 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 2/ 36 +0530 passengers on the back seat.
3. The complainant had further stated that around 11.00 PM, as soon as the TSR crossed the Yamuna River and reached the Police Post, the TSR driver took a left turn on a kaccha rasta. Thereafter, the said TSR was stopped in the middle of nowhere and the four persons who were in the said TSR, got out from the TSR and thus took out knives and asked the complainant that he should hand over all his belongings, or else he would be eliminated. The complainant got extremely scared for his life and he took out his mobile phone make Redmi, which was of white colour and was having a brown coloured back case and Rs. 700/- cash, which he was carrying with him at the time of the incident.
4. It was further mentioned in the statement of complainant that after the assailants had robbed him of his mobile phone and cash, they fled from the spot in the said TSR and before they could leave, the complainant managed to note down its registration number DL-1RU-3912. Thereafter, the complainant went back to his house by foot.
5. The complainant further mentioned in his statement that since his mother was unwell, he could not approach the police soon after the incident. His mother expired on 28.07.2017 and only after her death, he could come to the PS on 29.07.2017 to report the said incident which took place on 26.07.2017.
6. Upon recording of the statement of the complainant, the present case FIR was registered at Police Station New Usman Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 3/ 36 14:37:00 +0530 Pur on 29.07.2017 under section 392/397/34 IPC, 1860. After the registration of the FIR, the investigation was conducted by the IO and after completion of the same the chargesheet was filed before the court of Ld. MM u/s 392/397/411/34 IPC, 1860. After compliance of section 207/208 Cr.PC, the case was committed by the Court of Ld. MM before this court on 26.10.2017. Thereafter, the charges were framed by my Ld. Predecessor on 03.12.2018 u/s 392/397/34 and u/s 411 of The Indian Penal Code, 1860 against the accused Sadan S/o Israr. The accused person pleaded not guilty and he had claimed the trial.
7. To prove its case, the prosecution has examined seven (7) witnesses:
(7.1) PW-1 is Ramesh Singh and he is the complainant of the present case. He had deposed that on 26.07.2017, after completion of his service hours, he was returning from Mukherjee Nagar and was going towards his home. At about 11.00 pm, he came out of Kashmiri Gate Metro Station and boarded a TSR for 4th Pusta, Usmanpur, Delhi. At that time, there was one driver in the said TSR and another person was sitting with the driver on the front seat. There was one another person, who was sitting in the passenger seat at the back and when the complainant sat on the back seat of the said TSR, one another person also sat with him. He was sitting in the middle of the back seat.
(7.1.1) PW-1 further deposed that when they crossed Yamuna Bridge and reached near the Police Post, the TSR driver took a Digitally signed by ATUL ATUL AHLAWAT CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 4/ 36 AHLAWAT Date:
2024.08.30 14:37:08 +0530 left turn and moved on a kaccha raasta (rough road). Thereafter, all the said four persons, who were in the TSR with the complainant, came out and took out the knife and threatened him that if he wanted to save his life, he must take out all the valuables which he was carrying at that time. Due to fear, he handed over his mobile phone make Redmi 2 along with Rs. 700/- cash to the said persons. Thereafter, the assailants fled away, however, he managed to note down registration number of the TSR, however, could not remember the same on the day of his deposition.
(7.1.2) PW-1 further deposed that after the incident, he came back to his home and he could not make any complaint in the said regard soon after the incident, since the condition of his mother was very bad and his mother had expired on 28.07.2017. Thereafter, on the next day i.e. 29.07.2017, he went to the Police Station New Usmanpur and gave his statement Ex. PW1/A. He further deposed that he had also mentioned the TSR registration number in his complaint. He further deposed that after about 3-4 days, one police official informed him and requested him to join investigation to identify one person who was arrested in the present case. However, he refused to do so, as he could not see the faces of the assailants due to the fact that the incident took place at night and their faces were not visible. He identified his robbed mobile phone and same was exhibited as Ex. P-1.
(7.1.3) PW-1 was cross examined by Ld. Addl.PP for the State, since he had resiled from his earlier statements. During the cross examination, he admitted that in the complaint he had mentioned Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 5/ 36 2024.08.30 14:37:15 +0530 the registration number of the TSR as DL-1RU-3912. He denied the suggestion that accused Sadan, who was pointed out the Ld. Addl. PP for the State was one of the robbers, who had committed the robbery after showing the knife to the complainant.
(7.2) PW-2 is ASI Sita Ram and he had deposed that on
08.09.2017, he was posted at PS New Usmanpur as ASI and the investigation of the present case was marked to him and by the time, the investigation was almost complete. He prepared the charge sheet against accused Sadan and submitted the same before the concerned Court. Thereafter, he continued his further investigation and upon inquiries, he found the owner of the TSR bearing no. DL1RU 3912 was one Rahul Kumar as per the RC. Thereafter, he met the said person and he was informed that the said TSR was already sold by him to one Kishan Kumar Chaudhary. He recorded his statement and took documents i.e. Form 29 and Form 30 and thereafter he went to the house of the said Kishan Kumar Chaudhary and there he was informed that the TSR in question was handed over by him to the accused Sadan. He recorded his statement as well. Thereafter, he prepared supplementary charge sheet and filed the same before the Court.
(7.3) PW-3 is HC Patil Kumar and he had deposed that on 29.07.2017, he was posted at PS at New Usmanpur as the DO and his duty hours were from 8.00 AM to 8. 00 PM. On that day, at about 8.10 AM, he received the rukka from Sl Mahender Pal and he made an endorsement Ex. PW3/A. Thereafter the present case FIR No. 730/17 u/s. 392/397/34 IPC was got registered by Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 6/ 36 2024.08.30 14:37:22 +0530 him through the computer operator and after registration of the case, the computerized copy of the FIR Ex. PW3/B and the rukka in original were sent to SI Mahender Pal through Ct. Jahangir (7.4) PW-4 is Sh. Rahul Kumar and he had deposed that he was the registered owner of the TSR having registration no. DL-1RU- 3912, make Bajaj and he had sold the said TSR to one Krishan Kumar Chaudhary, after about 02 months of its purchase. However, name of Krishan Kumar Chaudhary was not registered on the RC of the said vehicle. After more than 6-7 months of the sale of his TSR, he was informed that the said TSR was seized in PS New Usmanpur and since the RC was still in his name, he got it released on superdari. The TSR was correctly identified and exhibited as Ex. P-2. The identity of TSR was not disputed by the Ld. Defence counsel.
(7.5) PW-5 is HC Dayal Kumar and he had deposed that on 29.07.2017, he was posted as Head Constable at PS New Usman Pur, Delhi and on that day, after registration of case FIR No. 741/17 u/s. 25 of the Arms Act, 1959, the investigation of the said case was assigned to him. Thereafter, he went to the spot i.e. road going towards Shastri Park from Khajuri, where ASI Naresh Kumar alongwith SI C. B. Sharma, ASI Pradeep and HC Shyam Sunder met him. On reaching there, ASI Naresh Kumar produced the accused persons namely Danish, Sadan, Yusuf and 'BH' (CCL) before him. He was also handed over the recovered knife and a toy pistol, which were recovered from the possession of the accused persons. ASI Naresh also produced one auto rickshaw in which the accused persons were apprehended and he arrested the Digitally signed by ATUL ATUL AHLAWAT CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 7/ 36 AHLAWAT Date:
2024.08.30 14:37:30 +0530 accused persons in the said case. During the course of interrogation in the said case, accused Sadan made his disclosure statement, alongwith other accused persons. All of them admitted their involvement in the present case. The photocopy of the disclosure statement of accused Sadan, which was recorded in case FIR No. 741/17 was exhibited as Ex.PW5/A. The Ld. defence counsel had no objection regarding the mode of exhibiting the said document and it was duly brought on record.
(7.6) PW6 is Krishan Kumar and he had deposed that he had been running a shop of auto spare parts and was also owing six auto rickshaws (TSRs) and he used to give the said auto rickshaws on rent to different drivers. The auto rickshaw no. DL- 1RU-3912 was also his auto rickshaw and same was purchased by him from one Rahul Kumar, however, its ownership could not be transferred in his name and the same remained in the name of the erstwhile owner Rahul Kumar.
(7.6.1) PW6 further deposed that on 26.07.2017, he had given the said auto rickshaw to accused Sadan on rent and later on, he came to know that the said auto rickshaw was seized by the police and thereafter, he got it released on superdari through its erstwhile owner Rahul Kumar. He correctly identified accused Sadan in the court.
(7.6.2) PW6 deposed during his cross examination conducted by Ld. Defense Counsel that he used to maintain a register, in which the details of the persons to whom he used to give his auto rickshaws on rent used to be mentioned. He used to duly note Digitally signed by ATUL AHLAWAT ATUL AHLAWAT Date:
2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 8/ 36 14:38:24 +0530 down the number of the auto rickshaw, the name of the driver and the time of the hand over. He further deposed that he used to take identity proof from the persons who used to take auto rickshaws on rent. However, he further categorically deposed that he did not use to take any license before giving it on rent on different drivers. During his deposition, he was not carrying any such register to show that the said auto rickshaw was given to accused Sadan on 26.07.2017, however he denied the suggestion that the said auto rickshaw was not given on rent to the accused Sadan on the said day.
(7.7) PW-7 is Retd. SI Mahender Pal and he is the IO of the present case. He had deposed that on 29.07.2017, he was posted at PS New Usmanpur and the complainant Ramesh Singh came to the PS and gave his statement Ex. PW1/A, which was recorded by him. He then prepared the rukka and handed over the same to the Duty Officer for the registration of FIR. After registration of the FIR, Duty Officer handed over a copy of the FIR and the original rukka to him. Thereafter, he alongwith Ct. Jahangir went to the spot and he prepared the site plan Ex. PW7/A, at the instance of the complainant. Thereafter, he searched for the accused persons, however, they could not be found. He recorded the statement of the witnesses.
(7.7.1) PW-7 further deposed that on next day, he received an information from HC Dayal regarding the arrest of accused Yusuf, Danish, Sadan and one CCL 'BH'. He formally arrested the three accused persons namely Yusuf, Danish, Sadan and prepared their arrest memos which were exhibited as Ex. PW7/B Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 9/ 36 2024.08.30 14:38:32 +0530 to Ex. PW7/D respectively. The accused made their disclosures and their disclosure statements Ex. PW7/E to Ex. PW7/G were recorded by him.
(7.7.2) PW-7 further deposed that the complainant refused to take part in the TIP, despite the notice Ex. PW7/H was served upon him. He also obtained the PC remand of the accused Sadan and the accused made his disclosure statement Ex. PW7/E, wherein he had disclosed that he could get the mobile phone which was robbed from the complainant recovered from near the pipeline situated at Garhi Mendu. Thereafter, accused Sadan led them to the pipeline and took out one mobile phone Redme, which was hidden under the bushes located near the said pipeline. The mobile phone was seized vide seizure memo Ex. PW7/I. After sealing the case property with the seal of 'MP', the seal was handed over to Ct. Jahangir. He also prepared the site plan of the place of recovery Ex. PW7/J and also prepared the pointing out memo Ex. PW7/K, at the instance of accused. Thereafter, they came back to the PS and deposited the case property at the malkhana and later on, the case property was released on superdari to the complainant. He correctly identified the accused Sadan before this Court. He also correctly identified the case property i.e. mobile phone Ex. P-1.
8. After completion of prosecution evidence, PE was closed. The statement of the accused person was recorded under Section 313 Cr.P.C., in which he had pleaded innocence.
9. The accused person chose not to lead any Defense Evidence. Digitally signed by ATUL ATUL AHLAWAT CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 10/ 36 AHLAWAT Date:
2024.08.30 14:38:41 +0530
10. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State and Ms. Bornali Singh, Ld. LAC for the accused. I have also minutely gone through the evidence brought on record and the material aspects of the case.
11. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on 26.07.2017 at about 11.00 PM, when the complainant was going in a TSR, which was being driven by the accused Sadan and the complainant had boarded the said TSR from outside of Kashmiri Gate Metro Station and after crossing the Yamuna Bridge, the accused took left turn and proceeded on the kachha rasta, the accused stopped his TSR and he alongwith his three associates who were also present in the said TSR, took out their knives and committed robbery of the mobile phone and Rs. 700/-, which were carried by the complainant. Therefore, the prosecution has been able to prove beyond reasonable doubt that the accused person in furtherance of his common intention shared with his accomplices, committed robbery and at the time of committing the said robbery the accused was armed with a deadly weapon i.e. a knife, as deposed by the complainant and therefore, all the ingredients of the offences punishable u/s 392/397/34 IPC, 1860 have been fully made out in the present case.
12. It is further submitted by the Ld. Addl. PP for the state that it has been proved by the prosecution that on the date of the incident i.e. 26.07.2017, the accused was driving the said TSR bearing no. DL-1RU-3912 after taking the same on rent from Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 11/ 36 14:38:48 +0530 PW-6 Krishan Kumar. The TSR was duly identified in the present case and after his arrest, accused Sadan had disclosed qua his involvement in the present case and from his disclosure statement Ex. PW7/E, he got recovered the robbed mobile phone. Therefore, the recovery of the mobile phone from the bushes, near the pipeline situated at Village Garhi Mendu, is proved beyond reasonable doubt and the robbed article was knowingly retained by him and he had hid the same after fully knowing the same to the a stolen property, therefore, all the ingredients of the offence punishable u/s 411 IPC, 1860 have been fully made out in the present case.
13. It is further submitted by the Ld. Addl. PP for the state that the testimony of the victim PW-1 Ramesh Singh was fully corroborated by the testimony of the other prosecution witnesses and even though the accused was not identified by the complainant/victim during his deposition before this Court, the said failed identity is not fatal to the case of the prosecution, since it was not deposed by PW-1 Ramesh Singh that no such incident took place, however, he merely deposed that owing to darkness in the night time, he could not identify the assailants.
However, the victim had categorically deposed regarding the incident in question and since from the testimony of PW-4 Rahul Kumar and PW-6 Krishan Kumar it came on record that the TSR in question was being driven by the accused, therefore the involvement of the accused has been duly proved by the prosecution in the present case.
14. It is further submitted by the Ld. Addl. PP for the state that Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 12/ 36 2024.08.30 14:38:54 +0530 the identity of the accused person was fully established in the present case as he was duly identified by PW-6 Krishan Kumar and PW-7 IO retired SI Mahendra Pal.
15. It is submitted by the Ld. LAC for the accused person that accused person has been falsely implicated by the IO and that he is completely innocent. The case of the prosecution is relying on the testimony of two star witnesses namely PW-1 Ramesh Singh, who is the complainant and PW-6 Krishan Kumar, who was apparently the owner of the TSR which was used in the commission of the offence and through his testimony the prosecution has sought to implicate the present accused as one of the assailants, since on the date of the incident, the said TSR was allegedly taken on rent by the accused Sadan. However, the testimonies of both the said witnesses are not corroborating each other. The accused was not identified by the complainant and the complainant had also not identified two other co-accused persons namely Yusuf and Danish, which led to their discharge u/s 169 Cr.P.C vide order dated 23.08.2017. The identity of the accused person has not been proved beyond reasonable doubt by the prosecution and the testimony of PW-6 Krishan Kumar is also not of a sterling quality and the same cannot be relied upon to link the present accused with the incident in question.
16. It is submitted by the Ld. LAC for the accused person that the recovery of the mobile phone Ex. P-1 is also shrouded in mystery, since it has come in the testimony of IO PW-7 Retired SI Mahendra Pal that the property was recovered at the pointing out of the accused and the same was seized Ex. PW7/I that he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 13/ 36 2024.08.30 14:39:00 +0530 had sealed the case property with his seal and handed over the seal to Ct. Jahangir. All the documents including seizure memo Ex. PW7/I, The site plan Ex. PW7/J, pointing out memo Ex. PW7/A, disclosure statement Ex. PW7/E etc., were all prepared by the IO in the present of Ct. Jahangir No. 1636/N/E, however, no such witness was ever examined before this Court.
17. It is submitted by the Ld. LAC for the accused person that no knife which was allegedly used by the accused person during the commission of the offence was recovered in the present case and the prosecution could not satisfy the basic burden of the offence u/s u/s 397 IPC, 1860.
18. It is submitted by the Ld. LAC for the accused person that accused was not identified by the complainant before this Court. In fact, the complainant failed to identify any of the alleged assailants and two other co-accused persons namely Yusuf and Danish were discharged by the Ld. MM after the complainant refused to take part in the TIP proceedings.
19. It is submitted by the Ld. LAC for the accused person that the alleged incident took place on 26.07.2017 and it was reportedly after an inordinate delay of three days. The FIR was registered on 29.07.2017 and the explanation offered by the complainant, that his mother was not well and she had expired on 28.07.2017, is not substantiated by any cogent evidence.
20. It is submitted by the Ld. LAC for the accused person that the sole basis of linking the accused to the present case is on the Digitally signed by ATUL ATUL CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 14/ 36 AHLAWAT AHLAWAT Date:
2024.08.30 14:40:55 +0530 disclosure statement recorded by the IO of some other case bearing case FIR No. 741/17, u/s 25 of Arms Act, 1959. Allegedly during the course of the interrogation of the said case, the four arrested persons including the present accused made a disclosure statement, in which they had admitted their involvement in the present case. The said disclosure statement has no values in the eyes of law and same cannot be the sole basis to link the accused with the present case.
21. In the background of the above, before discussing the evidence brought on record in the present case, it is pertinent to point out that the accused person can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
22. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 15/ 36 2024.08.30 14:41:02 +0530 "Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
23. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
24. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
Digitally signed by ATUL
25. Matters, do give more discretion and flexibility to the court ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:41:11 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 16/ 36 +0530 in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
26. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
27. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best ATUL Digitally signed by ATUL AHLAWAT Date: AHLAWAT 2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 17/ 36 14:41:17 +0530 left to the court to decide. The said decision might impinge upon the quality of the matters before it.
28. The word "Prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
29. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domaine.
30. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.08.30
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+0530
If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras" , 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well- recognized maxim that "Evidence has to be weighed and not Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 19/ 36 14:41:31 +0530 counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
Digitally (1) Wholly reliable.
signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:41:38 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 20/ 36 +0530 (2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:41:45 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 21/ 36 +0530 nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
31. In the background of the abovesaid decisions, I shall now appraise the evidence brought on record. As per the case of the prosecution, the complainant PW-1 Ramesh Singh was coming back from his work to his home on 26.07.2017 and at about 11.00 PM, he boarded an auto rickshaw (TSR) from outside the Kasmiri Gate Metro Station. At that time, there were four other persons including the driver in the said auto rickshaw. As per the prosecution case, after crossing the Yamuna Bridge and after the Police Post was crossed, the accused Sadan who was driving the said auto rickshaw, took a left turn on a kachaa rasta and the accused and his accomplices committed the robbery of the mobile phone and cash of Rs. 700/- belonging to the complainant, after showing a knife to him.
32. As per the case of the prosecution, the accused and other assailants namely Yusuf, Danish and 'BH' (CCL) were armed with knives, at the time of committing of the said robbery. During the investigation, the complainant refused to take part in the TIP proceedings before the Ld. MM, on the ground that he had not seen the faces of the assailants as it was dark at the time of the commission of the offence. Accused 'BH' (CCL) was ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 22/ 36 2024.08.30 14:41:51 +0530 found to be a juvenile and proceedings qua him were initiated before the concerned JJB. Accused Yusuf and Danish were both discharged u/s 169 Cr.P.C by Ld. ACMM, North East, vide order dated 23.08.2017, i.e. prior to the committal of this case before this Court, on the ground that there was no incriminating evidence against the said accused persons.
33. The present accused was linked by the investigating agency with the present case, after he was arrested in another case bearing FIR No. 741/2017 u/s 25 of Arms Act, 1959 at PS New Usmanpur itself. The present accused was arrested in the said case with all the other three accused persons, who were implicated in the present case as well on the basis of their alleged disclosure statements. The disclosure statement of accused Sadan was recorded by the IO of that case, namely HC Dayal Kumar vide statement Ex. PW5/A. The IO in the said case had allegedly recovered one buttondar chaaku from the accused person, however it is not the case of the prosecution that the said weapon i.e. buttondar chaaku which was allegedly recovered from the accused in case FIR No. 741/17 was being used by him in the commission of the present offence. The said chaaku was never produced before this Court and it was not proved by the prosecution in the present case that the accused was armed with a deadly weapon at the time of commission of the alleged offence.
34. The only relevant part of the disclosure statement Ex. PW5/A, is the part where the recovery of the mobile phone which was allegedly robbed by the accused and his accomplices is concerned. In pursuance of the said disclosure, the mobile Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 23/ 36 2024.08.30 14:41:58 +0530 phone was recovered vide seizure memo Ex. PW7/I, which was prepared by the IO PW-7 retired SI Mahendra Pal (who was posted as ASI at the time of investigation of the present case). The said mobile was seized by the IO in the presence of Ct. Jahangir No. 1636/NE on 30.07.2017. The IO had also prepared the site plan qua the recovery of the mobile phone vide Ex. PW7/Y and he had also allegedly prepared the pointing out memo of the place of incident Ex. PW7/K, at the joint pointing out of accused Sadan, accused Yusuf and accused Danish, in the presence of Ct. Jahangir. All the aforesaid documents were prepared by the IO after recording the disclosure statement of accused Sadan Ex. PW7/E in the presence of Ct. Jahangir. What is pertinent to point out here that, the entire investigation of the present case was conducted by the IO in presence of Ct. Jahangir, however he was never examined as a prosecution witness. Perusal of the record reflects that the said Ct. Jahangir was shown as one of the witnesses in the list of witness and he also summoned by the Ld. Predecessor of this Court on several occasions. On 05.07.2023, he was discharged unexamined on his request, owing to his ill health. However, later on the then Ld. Addl. PP for the State Sh. Harvinder Kumar Nar, made a submission before the Ld. Predecessor of this Court that on the behalf of the State, no other witnesses remained to be examined. The PE was closed vide order dated 20.01.2024 and matter was proceeded ahead.
35. The non examination of material formal witness namely Ct. Jahangir, in whose presence the entire investigation of the present case was carried out by the IO has cast doubts upon the ATUL Digitally signed by ATUL AHLAWAT AHLAWAT Date:
2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 24/ 36 14:42:04 +0530 veracity of the documents Ex. PW7/E, Ex/ PW7/I, Ex. PW7/J and Ex. PW7/K. Therefore, it cannot be said that the recovery of the mobile phone from the bushes behind the water pipeline near village Garhi Mendu is free from doubts. The prosecution could not dispel the doubts qua the veracity and genuineness of the robbed mobile phone and the said recovery is tainted with possible doubts of it being planted there. Therefore, the benefit of the said doubt deserves to be given to the accused.
36. Admittedly, there is a delay of three days in registration of the present case FIR, from the day of the alleged incident. The alleged incident took place on 26.07.2017 and the FIR was registered after the complainant gave his statement to the police on 29.07.2017. The explanation offered by the complainant in his statement/complaint Ex. PW1/A was that after the alleged incident, he went back home by foot and since his mother was unwell, he could not report the incident to the police. It was only after his mother had expired on 28.07.2017, he went to PS New Usmanpur and gave his statement Ex. PW1/A.
37. The explanation offered by the complainant qua the delay in reporting the alleged incident to the police assumes importance in the background of the facts of the another case FIR No. 741/17 u/s 25 of Arms Act. It is pertinent to mention here that the said case FIR was registered in the same PS New Usmanpur at 03.35 PM on 29.07.2017. The coincidence of the complainant making his statement Ex. PW1/A on the same day i.e. 29.07.2017 and preparation of the tehrir at 08.10 AM by the IO and on the very same day, a secret information was received in PS New Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:42:10 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 25/ 36 +0530 Usmanpur, whereby it was revealed that four assailants, who used to commit robbery upon the passengers of their TSR bearing no. DL-1RU-3912 and they were coming from Kashmiri Metro Station to Khajuri Khas and that they could be apprehended if the raid could be conducted immediately. In pursuance of the said secret information, the present accused along with his accomplices were allegedly arrested in the said case bearing FIR No. 741/17. The accused persons allegedly gave their disclosure statements on the same day to the IO of the said case and in pursuance of the said disclosure statement the recovery of the mobile phone was allegedly effected through the accused Sadan on 30.07.2017. The recovery and the disclosure statement in pursuance of which the said recovery was effected is already tainted with doubts in view of the discussion in the preceding paragraphs.
38. The deposition of PW-1 Ramesh that he could not make any complaint in regard of the alleged incident, immediately after the said incident took place, since the condition of his mother was very bad and on 28.07.2017, his mother had left for heavenly abode. Therefore, he could only give his complaint Ex. PW1/A on 29.07.2017, is also creating doubts upon the veracity of the allegations, since no death certificate or any other medical document pertaining to the ailments suffered by the mother of the complainant was brought on record. Therefore, a reasonable suspicion has been raised by the defense in the present case regarding the delay in reporting of the alleged incident and registration of the FIR. The fact that the said explanation for delay was not accompanied with any cogent evidence, assumes ATUL Digitally signed by ATUL AHLAWAT Date: AHLAWAT 2024.08.30 14:42:16 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 26/ 36 +0530 significance due to the bizarre coincidence of the accused person getting arrested in some other case registered in the same Police Station on the information received by a secret informer, on the same day the complainant gives his complaint Ex. PW1/A.
39. As per the case of the prosecution, the auto rickshaw (TSR in question) was allegedly being driven by accused Sadan and he was committing robberies upon the passengers in connivance with the co-accused persons. To link the present accused with the auto rickshaw (TSR) bearing registration no. DL-1RU-3912, the IO PW-2 ASI Sita Ram filed the supplementary charge-sheet before this Court on 12.10.2018. As per the prosecution, after filing of the main charge sheet, the investigating agency continued with further investigation qua the ownership of the said auto rickshaw. As per the supplementary charge sheet, the owner of the auto rickshaw (TSR) bearing registration no. DL- 1RU-3912 was one Rahul Kumar, however he had sold it to one Krishan Kumar Chaudhary.
40. The registered owner of the auto rickshaw (TSR) bearing registration no. DL-1RU-3912 was PW-4 Rahul Kumar and he deposed before this Court that he had sold off the said auto rickshaw to one Krishan Kumar Chaudhary after two months of its purchase. The auto rickshaw was duly identified by him as Ex. P-2. However, he went on to further depose that the name of Krishan Kumar Chaudhary was not changed in the RC.
41. Thereafter, the said Krishan Kumar Chaudhary was examined as PW-6 and he also deposed before this Court that he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:42:22 +0530 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 27/ 36 was running a shop of auto spare parts and he was also owing six auto rickshaws. The auto rickshaw (TSR) bearing registration no. DL-1RU-3912 was purchased by him from PW-4 Rahul Kumar, however its ownership could not be transferred and it remained in the name of Rahul Kumar only. Therefore, as per him the official registered owner of the said auto rickshaw was still Rahul Kumar. Yet, he went on to depose that on the day of the incident i.e. 26.07.2017, he had given the said auto rickshaw on rent to the accused. Therefore, his testimony was the most essential link for the case of the prosecution for proving that the accused Sadan was one of the assailants who committed the robbery upon the complainant, especially when the identity of the accused person and other assailants were not proved by the prosecution through the complainant, since the complainant had categorically refused to take part in the TIP proceedings during the investigation and he had refused to identify the accused before this Court at the time of his examination in chief.
42. The PW-6 Krishan Kumar could not withstand the rigors of the cross examination conducted by the Ld. Counsel for the accused. Since, during his cross examination he had categorically deposed that he used to maintain a register regarding handing over of the auto rickshaws to the drivers, at the time of the said drivers taking the rickshaws on rent. He further deposed that in the said register he used to mention the number of auto rickshaw, the name of driver who took it on rent and the time of handing over of the auto rickshaw. He further deposed that he used to take the identity proof of the said drivers, however he was not taking their driving licenses. However, no such register was produced Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 28/ 36 14:42:30 +0530 by him to show that on the day of the alleged incident, he had given the auto rickshaw in question to the accused Sadan. The said fact assumes more importance in the background of the fact that it had categorically come in the deposition of PW-6 that he himself was not the registered owner of the said auto rickshaw and it remained in the name of erstwhile owner PW-4 Rahul Kumar, in the relevant records.
43. As per the charges framed by my ld. Predecessor against the accused Sadan S/o Israr, he had prima facie committed robbery in furtherance of his common intention shared with his associates namely Danish, Yusuf and CCL 'BH' and in the said robbery he along with the other accused persons had forcibly taken out the one mobile phone and cash in a sum of Rs.700/- at the point of a buttondar chaaku/knife, from the possession of complainant Ramesh Singh. The accused Sadan was caught upon the secret information after another case FIR No. 741/17 u/s 25 of the Arms Act, 1959 was registered. The accused got recovered the mobile phone, which was robbed by him from the complainant. The Ld. Predecessor of this Court had framed the charges u/s 392/397 r/w 34 IPC, 1860 and Section 411 IPC, 1860.
44. Before proceeding ahead with appreciation of the evidence brought on record, this court deems it fit to discuss section 397 IPC, 1860 which is reproduced below:
"397. Robbery or dacoity, with attempt to cause death or grievous hurt ; Digitally signed by ATUL ATUL AHLAWAT If, at the time of committing robbery AHLAWAT Date:
2024.08.30 14:42:37 +0530 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 29/ 36 or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
45. As per the ingredients of offence punishable u/s 397 IPC, 1860 an act would fall within the mischief of the section if at the time of committing the robbery/dacoity the offender:
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
Reliance is placed upon the decision of the Hon'ble High Court of Bombay in "Shrawan Dashrath Datrange Vs. State of Maharastra" (1997) 2 Crimes 47 (Bom).
46. As far as the interpretation of the word " uses" for the purpose of section 397 IPC, 1860 is concerned, what is essential to satisfy the word "uses" is that the robbery being committed by an offender who was armed with deadly weapon which was within the vision of the victim, so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Ashfaq Vs. State (Govt. of Digitally signed by NCT of Delhi) " (2004) 3 SCC 116.
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.08.30
14:42:43
+0530
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 30/ 36
47. For section 397 IPC, 1860 it postulates that only the individual act of the accused is relevant to attract the said section. Therefore, it inevitably negates the use of the principle of constructive or vicarious liability as engrafted in section 34 of IPC, 1860. Reliance is placed on the decision in Ashfaq (Supra).
48. In the present case, the alleged knife which was used by the accused in the commission of the offence in question was never produced before this Court in spite of the fact that when the accused was arrested in the other case FIR No. 741/17, no knife/buttondar chaaku was recovered through him and the recovery of one knife/buttondar chaaku was shown through co- accused Danish. Co-accused Danish was already discharged in the present case u/s 169 Cr.P.C, since there was no incriminating evidence found against him. Furthermore, the complainant PW-1 Ramesh Singh failed to identify the accused before this Court and it has not come in the deposition of the complainant that the accused was armed with any dangerous weapon. Therefore, the allegation against the present accused person that he was armed with deadly weapon at the time of the commission of the offence in question, could not be established by the prosecution. Furthermore, it is not the case of the prosecution that accused Sadan had caused grievous hurt to any person or to have attempted to cause death or grievous hurt to any person. As per the case of the prosecution the allegations of wielding a knife/buttondar chaaku was leveled against the associate of the present accused, namely Danish. However, the said offender was Digitally already discharged u/s 169 Cr.P.C. Therefore, no aid of section ATUL AHLAWAT signed by ATUL AHLAWAT Date:
2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 31/ 36 14:42:56 +0530 34 IPC, 1860 can be taken to hold the accused Sadan guilty of committing the offence punishable u/s 397 IPC, 1860.
49. As far as the case of the prosecution is concerned, it is relying almost exclusively upon the testimony of the complainant PW-1 Ramesh Singh, who had refused to take part in the TIP proceedings during the investigation and had also refused to identify the present accused at the time of his examination in chief and in spite of the detailed cross examination conducted by Ld. Addl. PP for the State, he had categorically denied the suggestion that the accused Sadan, who was pointed out by Ld. Addl. PP for the State, was one of the robbers who had robbed him after showing a knife.
50. There are no ocular witnesses to depose for the alleged incident of robbery except for the complainant himself, however, in light of his categorical denial that the accused was one of the robbers who had committed the incident in question on 26.07.2017, coupled with the fact that the prosecution had sought to link the present accused with the incident in question through the testimony of PW-6 Krishan Kumar and PW-4 Rahul Kumar by trying to establish the fact that he was driving the TSR in which the alleged incident took place, also fell flat on its face, since nothing cogent came out in their testimonies to link the accused. The non examination of material formal witness i.e. Ct. Jahangir, who had allegedly witnessed the recovery of the mobile phone at the instance of the accused, has dealt a fatal blow on the case of the prosecution. Furthermore, the alleged disclosure Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 32/ 36 14:43:05 +0530 statement Ex. PW7/E has no value in the eyes of law, except for the alleged recovery of the looted article i.e. Mobile Phone of the complainant. However, the said recovery could not be proved by the prosecution beyond reasonable doubt and the justifiable doubts raised due to non examination of Ct. Jahangir who had accompanied the IO throughout the investigation, must go to the accused.
51. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra " AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P. "
(1996) 10 SCC 193.
52. It is also settled law that accused has to only proboblized the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable Digitally evidence. Emphasis is supplied on the decision of the Hon'ble signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:43:12 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 33/ 36 +0530 Supreme Court of India in "Kailash Gaur Vs. State of Assam"
(2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
53. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in " Kali Ram Vs. State of Himanchal Pradesh " AIR 1973 SC 2773.
54. The improvements and the inherent contradictions in the testimony of the prosecution witnesses had certainly raised doubts in the mind of the Court and the effort of the Criminal Court is not to be prowl for imaginative doubts, unless is doubt is of a reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused persons is governed by the principle of " preponderance of probabilities" and in light of the discussion above, the accused person in the present case have been able to raise reasonable doubts against the prosecution version of events and the Digitally signed by hypothesis as propounded by the accused person that due to prior ATUL ATUL AHLAWAT AHLAWAT Date:
2024.08.30 14:43:20 CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 34/ 36 +0530 enmity, they have been falsely implicated in the present case by the complainant. With the evidence brought on record, it cannot be said that the chain of prosecution witnesses and the evidence brought on record was so complete, so as to not leave any reasonable ground consistent with the innocence of the accused person.
55. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, this court is of the view that the evidence brought on record is not worthy of acceptance and there is a serious shadow of doubt cast upon it. The testimony of the prosecution witnesses is not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Sadan S/o Israr is acquitted of the charges for committing the offences punishable u/s 392/397/34 IPC, 1860 and u/s 411 IPC, 1860 and he shall be set at liberty.
56. The accused person is directed to file the bail bond u/s 437A Cr.PC within three days from today.
57. The case property, if any, be released to the rightful owner as per the law and the applicable rules, subject to the orders of the Digitally signed by Hon'ble Appellate Court(s). ATUL ATUL AHLAWAT AHLAWAT Date:
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58. Let the copy of this Judgment be given free of cost to the accused and the same be also sent to the concerned Jail Superintendent along with a direction to set the accused person at liberty, if he is not in custody in any other case.
59. File be consigned to the record room after due compliance.
Announced in the open Court on 30.08.2024. This judgment consists of 36 pages and all of them have been digitally signed by me.
Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.08.30
14:43:41
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/30.08.2024
CNR No. DLNE01-009526-2016 State Vs. Sadan FIR No. 730/2017 Page no. 36/ 36